R v Seiden
[2009] VSCA 283
•3 December 2009
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 783 of 2009
| THE QUEEN |
| v |
| LOUIS DANIEL SEIDEN |
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JUDGES: | WEINBERG and MANDIE JJA and COGHLAN AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 December 2009 | |
DATE OF JUDGMENT: | 3 December 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 283 | |
JUDGMENT APPEALED FROM: | R v Seiden (Unreported, County Court of Victoria, Judge Pullen, 20 August 2009) | |
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CRIMINAL LAW – Sentence – Appellant pleaded guilty to charges of intentionally causing serious injury, affray and theft – Appeal on grounds that sentencing judge gave insufficient weight to the appellant’s psychiatric condition (Asperger’s Syndrome) and that sentences manifestly excessive - Crown conceded theft sentences manifestly excessive – Appeal allowed – Appellant re-sentenced.
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| APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr G J C Silbert SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Appellant | Mr R F Edney | Matthew White & Assoc |
WEINBERG JA:
I shall ask Mandie JA to deliver the first judgment in this matter.
MANDIE JA:
In relation to incidents which occurred on 25 October 2008, the appellant was charged the next day with a number of offences to which he pleaded guilty at a second committal mention on 20 February 2009. A plea in mitigation of sentence was heard before the County Court on 12 August 2009 and on 20 August 2009 the appellant was convicted and sentenced on the following counts:
1.Intentionally causing serious injury to another person (s 16 Crimes Act 1958 – maximum penalty: 20 years’ imprisonment) – 2 years’ imprisonment (base sentence).
2.Affray (common law offence – maximum penalty under s 320 Crimes Act 1958: 5 years’ imprisonment) – 10 months’ imprisonment with 4 months to be served cumulatively on count 1.
3.Theft (s 74(1) Crimes Act 1958 – maximum penalty: 10 years’ imprisonment) – 6 months’ imprisonment with 2 months to be served cumulatively on count 1.
4.Theft (s 74(1) Crimes Act 1958 – maximum penalty: 10 years’ imprisonment) – 6 months’ imprisonment with 2 months to be served cumulatively on count 1.
The total effective sentence was thus 2 years 8 months’ imprisonment and 14 months was fixed as a non-parole period.
The appellant was granted leave to appeal on 13 November 2009 and the full statement of grounds of appeal is as follows:
1.The learned sentencing judge failed to give sufficient weight to the appellant’s psychiatric condition and its relevance to the:
(a) moral culpability of the appellant;
(b)moderation of the application of principles of general and specific deterrence;
(c)appellant’s experience of imprisonment being more onerous;
(d)risk that imprisonment would pose to the appellant’s mental health.
2.The individual sentences and the total effective sentence are manifestly excessive.
The Crown has conceded error in respect of counts 3 and 4 - rightly, I think, because the sentences of 6 months each in respect of two thefts of items of very small value were in my opinion manifestly excessive. As a result of this concession, it is necessary for the appellant to be re-sentenced on all counts.
The appellant was born on 30 January 1989 and thus at the time of the offences he was aged about 19 years and 9 months. Prior to the principal offences, the appellant had stolen a bottle of rum from the local supermarket (a theft which he admitted to the police after his arrest - count 3). The appellant with a group of friends attended a party at Mordialloc beach. There were about 50 people at the party. The victim, Grant Anthony Piels, who was aged 17 and not known to the appellant, saw a friend become involved in a fight with other attendees at the party and ran over to remove their friend from the fight. The fight fizzled out and Mr Piels began to walk away when he felt someone push him from behind causing him to fall to the ground, hitting his head on the concrete footpath. He was then assaulted by a number of people. Eyewitnesses to the assault described Mr Piels lying motionless on the ground with at least 4 persons violently kicking and stomping at his head. One of these was the appellant (wearing a white T-shirt). The appellant was observed kicking Mr Piels at least 5 times to the head as he lay in an unconscious state. The appellant was also seen to hit Mr Piels over the head with a beer bottle as he lay on the ground. One witness said that he saw the bottle break over Mr Piels’s head due to the force with which it was swung. The conduct of the appellant comprising this assault was the subject of count 1. The appellant was then pulled away from the scene by his friends. There was evidence of the fear instilled in those at the party due to this assault - people were described as crying and fearing for Mr Piels’s life and for their own safety (count 2). The appellant and his co-offenders then fled the scene. The appellant then stole food items from a local supermarket to the value of $10 (count 4).
Mr Piels was attended by ambulance members and taken to hospital and treated. He had facial injuries including patterned red bruising on his right upper forehead, a 15mm laceration or incision mark on the left side of the bridge of his nose, a lateral sub-conjunctival haematoma on his right eye, extensive purple bruising and swelling to his left eye which prevented it from being opened and a 60 x 8mm horizontal area of patterned bruising on the front of his abdomen. There was evidence of the pain experienced by Mr Piels.
The appellant had been in the period 2005 to 2007 sentenced without conviction by the Children's Court on a number of occasions in respect of a variety of charges (including theft, entering a private place without authority, affray, damaging property with intent and unlawfully consuming liquor). On 7 May 2008 he was charged in the Magistrates' Court with using a drug of dependence (namely cannabis L) and sentenced without conviction and on 8 October 2008 he was convicted in the Magistrates’ Court of causing injury recklessly, discarding litter in a public place and failing to answer bail and fined $300 and also sentenced without conviction on two theft charges. In relation to the latter he was released on entering into an undertaking to be of good behaviour for a period of 8 months with a special condition to attend a General Practitioner for treatment of a major depressive disorder as diagnosed by Dr Anthony Cidoni (psychiatrist of Forensicare).
A number of psychological and medical reports were provided to the sentencing judge on the plea.
Dr Anthony Cidoni, consultant psychiatrist, in a report dated 22 September 2008 said that the appellant had a history consistent with a major depressive disorder and that he had concerns in terms of the appellant's intellectual capacity. In relation to the offending, Dr Cidoni said that it appeared the appellant had been involved in the offence in the context of peer pressure, and did not appear to have a particular predisposition to violence or an anti-social personality. He said that imprisonment would most likely lead to a deterioration in his depression.
Ms Carla Lechner, consultant clinical and forensic psychologist, in a report dated 17 June 2009 said that the appellant had a prior history that seemed to have arisen in the context of alcohol abuse and that he appeared to have learning and social difficulties and low self-esteem. Ms Lechner said that the appellant had limited recall of the relevant events in October 2008 due to his level of intoxication. Ms Lechner said that the appellant impressed as cognitively and emotionally immature with a limited ability to reflect on the impact that his behaviour had on himself and others. The appellant told her that every weekend he ‘binge drinks to the point of intoxication’. She said that his performance on certain verbal tests placed him in the ‘borderline/low average’ range of verbal intelligence with approximately 92% of the adult population performing better. Ms Lechner said that the appellant presented with symptoms of an alcohol abuse problem and some symptoms of depression and that ‘given his history of speech and learning difficulties, chronically low self-esteem and his current presentation, the possibility of Asperger's Disorder cannot be ruled out’. She said that a Youth Justice Centre would provide a range of treatment programs that would be well suited to him (if he received a term of imprisonment).
Dr Aaron Cunningham, forensic psychologist, in a report dated 28 July 2009 recorded that the appellant reported using a quarter-ounce of cannabis per week and that he had used cannabis for the past 4 years. Dr Cunningham said that the appellant was administered the Australian Scale for Asperger's Syndrome and that he ‘was found to endorse a significant number of behaviours’ on the relevant questionnaire ‘which supports a diagnosis of Asperger's Syndrome’. Dr Cunningham said that the appellant's ‘current presentation and clinical history is consistent with a diagnosis of Asperger's Syndrome’. Dr Cunningham then said:
[The appellant's] offence specific risk factors appear to be his alcohol use and his negative peer associations. Both of these factors were present at the time of the offence. Underlying these offence specific risk factors, [the appellant] presents with offence related risk factors in the form of Asperger's Syndrome and environmental instability. Asperger's Syndrome is a pervasive developmental disorder, meaning that it is normally diagnosed in early childhood and remains a lifelong condition. … Asperger's Syndrome is characterised by social impairment with lack of empathy, limited interests and preoccupations, repetitive routines and non-verbal communication problems. Asperger's Syndrome may have impacted on [the appellant's] offending behaviour, in that his social and emotional reciprocity, and his understanding of the social and moral acceptability of certain conduct, would have been impaired relative to an individual without Asperger's Syndrome. He would most likely have had an impaired ability to empathise with the victim's situation and to understand the moral appropriateness of his behaviour.[1]
[1]Emphases added.
The appellant's conduct constituted a despicable and serious assault on the victim which, along with the conduct of his co-offenders, could quite easily have left the victim with much more serious injuries than he apparently suffered – ‘fortunately’ for him and for the appellant.
It is useful to refer to what was said by the sentencing judge. The judge said that it was a vicious assault and that the appellant left the scene without offering any assistance to an obviously injured and helpless victim. The judge referred to the appellant's early plea of guilty and took it into account in mitigation of sentence and also as indicating some remorse. The judge referred to the contents of the various psychological and psychiatric reports including Dr Cunningham's view of the likely impact of Asperger's Syndrome. The judge referred to the appellant's prior convictions and court appearances and to the evidence relating to alcohol and substance abuse and the appellant's efforts albeit limited to overcome these problems. The judge said:
I accept you suffer with Asperger’s syndrome and have suffered in the past from depression. In my opinion, it is appropriate there be some moderation but not significant moderation of both general and specific deterrence in your case based on these principles. Even making allowance in your favour for these matters I cannot ignore your previous relevant offending, (even considered against a background of Asperger’s syndrome) and that your offending occurred after being placed on an undertaking on 8 October 2008 by which time you had seen Dr Cidoni and would have had some awareness of your previously inappropriate and violent behaviour. In sentencing you, I do moderate your sentence to some degree in relation to both specific and
general deterrence, taking into account the principles in R v Verdins & ors.
The judge also took into account that the appellant was a young offender.[2]
[2]Citing, inter alia, R v Mills (1998) 4 VR 235, R v Connolly [2004] VSCA 24 and DPP v Simpis [2009] VSCA 40.
On re-sentencing the appellant, it is appropriate to take into account the possible impact of the appellant's psychiatric condition in relation to his moral culpability and with respect to moderating the principles of general and specific deterrence. It is also appropriate to take the appellant's said condition into account in relation to the likely effect upon him of imprisonment - although it is very likely, and I would think, appropriate, that the whole of any sentence will be served in a Youth Justice Centre.
Nevertheless, considerations of denunciation as well as deterrence must be taken into account. I am not persuaded that the sentences imposed on the appellant in respect of counts 1 and 2 should be any less than those imposed by the sentencing judge. Indeed I consider those sentences to be merciful in all the circumstances of the offending. I do not agree with the appellant's submission that a period of actual imprisonment is inappropriate. Further, in my opinion, a degree of cumulation in relation to count 2 is also appropriate. In my view, the appellant should be re-sentenced on counts 1 and 2 in the same way as he was sentenced below. I consider that the sentences on counts 3 and 4 should be reduced to 14 days on each count and rendered wholly concurrent with each other, and with the sentences imposed on counts 1 and 2. The result is that the total effective sentence of the appellant should be 2 years and 4 months' imprisonment (instead of 2 years and 8 months' imprisonment). However, I am of the view in all the circumstances that the non-parole period should remain at 14 months.
WEINBERG JA:
I agree.
COGHLAN AJA:
I agree.
WEINBERG JA:
The orders of the Court are as follows:
1. The appeal is allowed.
2.The sentences imposed below are quashed and in lieu thereof the appellant is sentenced as follows:
count 1, intentionally causing serious injury: two years' imprisonment;
count 2, affray: ten months' imprisonment;
count 3, theft: 14 days' imprisonment;
count 4, theft: 14 days' imprisonment.
3.The Court directs that four months of the sentence imposed on count 2 be served cumulatively on count 1 and that the sentences imposed on counts 3 and 4 be served concurrently with each other and with the sentences imposed on counts 1 and 2, making a total effective sentence of two years and four months' imprisonment.
4.A non-parole period of 14 months is fixed.
5.The remaining orders made by the sentencing judge are confirmed.
It is declared that the period of 115 days is to be reckoned as already served under the sentence and it is ordered that there be noted in the records of the Court the fact that the declaration was made and its details.
Other matters
For the avoidance of doubt, and insofar as s 6AAA of the Sentencing Act 1991 (Vic) may be applicable, but for his plea of guilty, the appellant would have been sentenced to a total effective sentence of 4 years’ imprisonment, with a non-parole period of 2 years.
The Court recommends to the relevant authorities that the appellant serve the sentence now imposed at a Youth Justice Centre.
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